In the High Court of New Zealand Wellington Registry
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE CIV-2017-485-803 [2018] NZHC 614 UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules IN THE MATTER OF an application for judicial review BETWEEN ENTERPRISE MIRAMAR PENINSULA INCORPORATED Applicant AND WELLINGTON CITY COUNCIL First Respondent THE WELLINGTON COMPANY LIMITED Second Respondent Hearing: 5 and 6 March 2018 Appearances: M S Smith, P Milne and M R C Wolff for Applicant N M H Whittington and A E Minogue for First Respondent P J Radich QC and T P Refoy-Butler for Second Respondent Judgment: 9 April 2018 JUDGMENT OF CHURCHMAN J Pursuant to r 11.5 of the High Court Rules I direct the delivery time of this judgment is 11.30 am on 9 April 2018 ENTERPRISE MIRAMAR PENINSULA INCORPORATED v WELLINGTON CITY COUNCIL [2018] NZHC 614 [9 April 2018] Introduction [1] Approval of an SHA [7] The site [15] The application [26] Judicial review [38] Particular challenges [47] Non-compliance with HASHAA procedural rules [47] The first decision [71] Legal test [73] Analysis [85] Council’s financial interest [105] Delegation to independent commissioners [125] The discretion given in s 76(2)(d) of HASHAA [132] Analysis [137] Combined effect [149] Misconstruction/misapplication of s 34(1) [154] The second decision [154] Misunderstanding of s 34? [170] Relatively little weight/lesser weight [175] Double-counting [178] Internal weight [191] Section 34(2) [202] Incorrect reliance on s 72(3) of HASHAA [231] Acting for improper purposes [240] Conclusion [250] Introduction [1] The Housing Accords and Special Housing Areas Act 2013 (“HASHAA”) was enacted on 13 September 2013. The MBIE Regulatory Impact Statement said that the Act was an endeavour to respond to New Zealand’s “significant housing affordability problem”.1 [2] The passing of HASHAA had been preceded by a report from the New Zealand Productivity Commission on housing affordability.2 The Commission had identified both the Resource Management Act 1991 and local authorities’ consenting processes as contributing to the perceived housing shortage. 1 MBIE Regulatory Impact Statement: Creating Special Housing Areas (15 April 2013) at [8]. 2 New Zealand Productivity Commission “Housing Affordability” (March 2012). [3] The purpose of HASHAA is stated to be: “… to enhance housing affordability by facilitating an increase in land and housing supply in certain regions or districts …”.3 [4] HASHAA does not apply to all of New Zealand but only to the regions and districts listed in Schedule 1. The district administered by Wellington City Council is listed in Schedule 1 as being an area with significant housing supply and affordability issues. [5] In order for a development to be governed by HASHAA, it must fall within certain parameters: (i) The Minister responsible for the administration of HASHAA and the territorial authority listed in Schedule 1 must enter into a “housing accord” which sets out agreed targets for residential developments. (ii) The territorial authority then recommends to the Minister that an area be established as a special housing area. (iii) If the Minister is satisfied that adequate infrastructure to service qualifying developments in the proposed special housing area either exists or is likely to exist, the Minister may recommend that an area be designated as a special housing area (“SHA”). (iv) If a housing accord is terminated or the parties are not able to conclude a housing accord, the Minister may, of his or her own initiative, recommend that an area be designated an SHA. (v) If the Minister so recommends, the Governor-General may, by Order in Council, declare an area to be an SHA for the purposes of HASHAA. 3 Housing Accords and Special Housing Areas 2013, s 4. [6] The Minister and Wellington City Council (WCC) signed a housing accord on 24 June 2014. The intention of that accord was to increase housing supply and improve affordability by providing an environment that facilitated development. Approval of an SHA [7] Subsequent to the establishment of the accord, the Minister approved a number of SHAs within the territory of WCC, including the subject site of these proceedings at Shelly Bay. [8] Once an SHA has been established, a person can apply for a resource consent under HASHAA in relation to any “qualifying development”. [9] Section 14 of HASHAA defines “qualifying development” as one that will be “predominantly residential” and one in which dwellings and other buildings will not be higher than six-storeys or a maximum of 27 metres. Where there is to be a prescribed minimum number of dwellings or prescribed percentage of affordable dwellings, a “qualifying development” must comply with these requirements. The prescribed minimum number of dwellings to be built in the Shelly Bay SHA is 20 but there is no prescribed minimum number of affordable dwellings.4 [10] Once land is designated as an SHA under Part I of HASHAA, then the provisions of Part II apply. Part II has significant Resource Management Act (RMA) implications. As the Court said in Ayrburn Farm Developments Ltd v Queenstown Lakes District Council:5 It sets up a permissive resource consenting regime which is designed to facilitate an increase in residential land and housing supply by making it easier for developers and owners of SHA land to obtain resource consents for certain qualifying housing developments. [11] Part II of HASHAA provides that an application in relation to an SHA is dealt with very differently to an application under the RMA. One of the most striking 4 Criticism of the proposal on the basis that it has no or insufficient provision for affordable housing is therefore misplaced. 5 Ayrburn Farm Developments Ltd v Queenstown Lakes District Council [2016] NZHC 693 at [16]. differences relates to the circumstances in which such an application is to be notified and whether or not a hearing is to be held. [12] The Act provides:6 An authorised agency must not notify, or hold a hearing in relation to, an application for a resource consent made under section 25, except as provided in subsections (3) to (5). [13] Subsections (3) to (5) refer to owners of land adjacent to the land subject to the application, local authorities in whose district the land falls, infrastructure providers who have assets on, under or over the land and any requiring authority in relation to a designation. This is fundamentally different to the notification regime under the RMA. The same applies in relation to the positive instruction in s 29(1) not to hold a hearing except as provided in subs (3) to (5). [14] Section 22 of HASHAA specifically provides that the RMA 1991 does not apply to an application, request, decision or any other matter under Part II of the Act unless HASHAA expressly applies the provisions of the RMA. The site [15] Shelly Bay is located on the western side of the Miramar Peninsula and is about mid-way between Miramar Avenue to the south and Point Halswell, the northern tip of the Miramar Peninsula. It contains the largest area of flat land between those two points. The site is about 8 kilometres from Wellington CBD. [16] Human activity on the Miramar Peninsula goes back to the time of Kupe and various iwi have occupied the area over the past 600 or so years. The Māori name for the peninsula is Te Motu Kairangi reflecting the fact that, at the time of initial Māori occupation, it was an island rather than the peninsula it is today. [17] Various iwi have come and gone over the years including Ngāti Tara, Ngāti Ira, and Ngāti Kahungunu. Since their invasion in the 1830s, Taranaki Whānui (Ngāti Tama, Ngāti Mutunga and Te Āti Awa) have held mana whenua status. 6 HASHAA s 29(1). [18] European activity at Shelly Bay has been dominated by various military activities. It was the site of a naval base from 1885 and the oldest extant building is the Submarine Mining Depot Barracks (submarine mining refers to the laying of underwater mines to protect the entrance to Wellington Harbour) from 1887. [19] Much of the flat land at Shelly Bay was reclaimed during World War II and the wharf structures date from that period. Structures such as Shed 8 and the Shipwrights Buildings also date from this period. [20] Following World War II, Shelly Bay was the site of an air force base until 1995 when it was declared surplus to military requirements. [21] It is thought that some parts of the site may be potentially contaminated by things such as explosives, heavy metals and hydrocarbons as a legacy of its military use, although little actual evidence about the extent or nature of any contamination appears to exist. [22] Since 2005, WCC has owned a 1.6 hectare irregular shaped parcel of land largely along the waterfront. It is zoned Business 1 in the operative District Plan. [23] Since 2010, the Port Nicholson Block Settlement Trust (“PNBST”), which is the entity representing Taranaki Whānui, has owned two separate parcels of land at Shelly Bay totalling 5.0445 hectares. This land was acquired by PNBST pursuant to its Treaty of Waitangi Settlement with the Crown. The relatively flat land within these parcels is zoned Business 1 and the balance which rises steeply up behind Shelly Bay is zoned Open Plan B. [24] The wharf structures are owned by PNBST and held by way of a coastal permit which expires in 2019. The coastal permit is renewable but requires the works situated in the coastal marine area to be kept in a good state of repair.